The Texas Supreme Court upheld protections for anonymous online speakers in a January ruling, albeit in a way that sidestepped thorny legal questions but will likely have the effect of vindicating First Amendment rights going forward.

The case, Glassdoor, Inc. v. Andra Group, concerned an effort by clothing company Andra to unmask anonymous speakers who posted on the employee review website Glassdoor.

Andra believed that some of its current or former employees posted content on Glassdoor that was defamatory and damaged its business. Rather than file a lawsuit against the anonymous speakers and then seek to unmask them, Andra sought to use a Texas court rule (Texas Rule of Civil Procedure 202) against Glassdoor to engage in pre-litigation discovery without filing an actual legal case.

The rule allows parties, without first filing a civil complaint, to collect evidence that would support claims in a subsequent lawsuit. In this case, Andra filed a Rule 202 petition to try to uncover the identities of anonymous reviewers whom the company claimed had defamed it.

Glassdoor opposed Andra’s Rule 202 petition and argued that petition violated its users’ First Amendment right to speak anonymously, and it separately sought to dismiss the Rule 202 petition under the Texas anti-SLAPP law (Texas Citizens Participation Act). Laws like the TCPA target Strategic Lawsuits Against Public Participation, or SLAPPs, and are designed to protect and promote the free exercise of First Amendment rights.

What followed was a fight about whether Texas’ anti-SLAPP law could be applied to Rule 202 petitions, as they are distinct from actual civil cases that are clearly subject to the anti-SLAPP law’s protections. The trial court denied the anti-SLAPP motion without issuing an opinion. The appellate court affirmed the decision and assumed that the anti-SLAPP law applied, though it refused to require Andra to show that it had specific evidence to support its claims. This showing is a core element of the statute, as it is designed to weed out weak cases that target otherwise protected speech or seek to intimidate or harass speakers through abuse of the court system.

Instead, the appellate court erred by ruling that all Andra had to show was that the benefit to Andra of using the Rule 202 discovery process outweighed the burden on Glassdoor of complying; the court held that Andra had met this showing because the Rule 202 process would identify the anonymous speakers. The ruling was problematic because it sidestepped the substantive First Amendment protections embodied in the Texas anti-SLAPP law as well as the constitutional rights of anonymous speakers not to be unmasked without good cause. After the court of appeals affirmed, Glassdoor asked the Texas Supreme Court to review the case.

We filed an amicus brief in support of Glassdoor and the anonymous speakers because we were concerned that the trial court’s ruling would allow litigants to abuse Texas’ early discovery procedure and intimidate or harass anonymous speakers, rather than vindicate legitimate legal claims.

Our brief supported Glassdoor’s argument that the Texas anti-SLAPP law should fully apply to Rule 202 protections. Importantly, we also argued that regardless of whether the anti-SLAPP law applies, or whether a Rule 202 petition is considered on its own, the Texas courts should apply a robust First Amendment-based test to consider the rights of anonymous speakers threatened by Rule 202 petitions.

In its ruling on January 25, the Texas Supreme Court sidestepped the thorny legal questions involved in harmonizing the state laws that permit early discovery and protect First Amendment activity, and the larger constitutional questions about anonymous speech. Instead, the supreme court ruled that Andra's Rule 202 petition was now moot because the statute of limitations for the underlying defamation and business disparagement claims had run. Statutes of limitation create windows that limit the time in which a party suffering a legal injury can bring claims against others they allege harmed them.

In short, the supreme court said that because Andra had spent years fighting a pre-litigation discovery battle without ever filing a legal case against the anonymous speakers, the company missed its window to vindicate its legal claims.

At first blush, the decision is somewhat disappointing because the Texas Supreme Court missed an opportunity to stand up for anonymous speakers and require anyone seeking early discovery under Rule 202 to overcome the high hurdles of the First Amendment and the Texas anti-SLAPP law. But a careful review of the ruling shows that there’s a lot of good news for anonymous speakers.

First, the decision could have the practical effect of providing strong protections for anonymous speakers because of the message it sends to future litigants seeking to follow in Andra’s footsteps. Litigants seeking to use Texas’ Rule 202 petition to unmask anonymous speakers will know that they will likely face a similarly long court fight about whether and how the First Amendment and Texas anti-SLAPP law apply to their cases. And they will also know that being tied up in that court battle for years may eventually moot any legal claims they could bring should they never file actual lawsuits.

Thus, those seeking to unmask anonymous speakers would be wise to, in addition to filing a Rule 202 petition, also file a lawsuit against the anonymous speakers. Those anonymous speakers would then have the full ability to defend themselves under the First Amendment and Texas anti-SLAPP law. This was what EFF had hoped for when we filed our brief in the case, as we were concerned that people would gain the benefits of Rule 202’s early discovery procedure without having to contend with the First Amendment’s protections for anonymous speakers.

The court’s ruling was also good for several other reasons.

For example, the Texas Supreme Court rejected arguments by Andra that the statute of limitations on its defamation and business disparagement claims didn’t begin to run until it actually discovered the identities of the anonymous Glassdoor users. The court instead ruled that the deadline under the statute of limitations started when Andra learned of the speech it believed was offensive (this is called the discovery rule).

Relatedly, the supreme court rejected an argument by Andra that the statute of limitations should have been extended because the reviews were technically re-published each time a new Glassdoor user viewed the supposedly offensive content. Under defamation law, typically each new publication of a defamatory statement triggers a new claim and the running of the statute of limitations, potentially restarting the clock several times, to the benefit of the plaintiff. But courts across the country have recognized that when it comes to online content and other mass media, the traditional defamation publication rule is unworkable. Many courts have thus adopted a single publication rule, meaning that the statute of limitations is tied to when the defamatory statement was first made public and does not get extended based on future republications. The Texas Supreme Court agreed with this emerging legal principle.

Finally, the supreme court didn’t overrule the appellate court’s assumption that the Texas anti-SLAPP law applied to Rule 202 petitions. Although we think the appellate court erred in its analysis under the statute, the fact that the supreme court didn’t foreclose the law’s application leaves future anonymous speakers subject to Rule 202 petitions with the opportunity to raise it as a defense. And, we hope, it gives other Texas courts an opportunity to fully protect the anonymous speech rights of users targeted by Rule 202 petitions.

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